New York State Plan for Public Employees Only; Approval of Plan Supplements and Certification of Completion of Developmental Steps

[Federal Register: August 16, 2006 (Volume 71, Number 158)][Rules and Regulations] [Page 47081-47090]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16au06-9]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1956
RIN 1218-AC24
New York State Plan for Public Employees Only; Approval of Plan
Supplements and Certification of Completion of Developmental Steps
AGENCY: Occupational Safety and Health Administration (OSHA), Labor.
ACTION: Final rule; New York State Plan; Approval of Plan Supplements;
State Plan Certification.
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SUMMARY: The New York Department of Labor submitted timely
documentation attesting to the completion of all structural and
developmental aspects of its public employee (State and local
government) only State plan as approved by the Occupational Safety and
Health Administration (OSHA). After extensive review of the submissions
and opportunity for correction, plan supplements constituting an
updated and revised State plan were submitted. OSHA is approving the
revised State plan, which documents the satisfactory completion of all
structural and developmental aspects of New York's approved State plan,
and certifying this completion. This certification attests to the fact
that New York now has in place those structural components necessary
for an effective public employee only program. (Enforcement of
occupational safety and health standards with regard to private sector
employers and employees in the State of New York remains the
responsibility of the U.S. Department of Labor, Occupational Safety and
Health Administration.)
DATES: Effective Date: August 16, 2006.
FOR FURTHER INFORMATION CONTACT: For general information and press
inquiries, contact Kevin Ropp, Director, Office of Communications, Room
N-3647, OSHA, U.S. Department of Labor, 200 Constitution Avenue NW.,
Washington, DC 20210; telephone (202) 693-1999. For technical
inquiries, contact Barbara Bryant, Director, Office of State Programs,
Directorate of Cooperative and State Programs, OSHA, U.S. Department of
Labor, 200 Constitution Avenue, NW, Room N-3700, Washington, DC 20210;
telephone (202) 693-2244. Electronic copies of this Federal Register
notice, as well as all OSHA Federal Register notices mentioned in this
document, are available on OSHA's Web site at http://www.osha.gov.
SUPPLEMENTARY INFORMATION:
I. Background
Section 18 of the Occupational Safety and Health Act of 1970 (the
``OSH Act''; 29 U.S.C. 667) provides that a State which desires to
assume responsibility for the development and enforcement of
occupational safety and health standards may submit for OSHA review and
approval a State plan for such development and enforcement. Regulations
at 29 CFR part 1956 provide that a State may voluntarily submit a State
plan for the development and enforcement of occupational safety and
health standards applicable only to employers and employees of the
State and its political subdivisions (hereinafter referred to as
``public employers'' and ``public employees''). State and local
government employers are excluded from Federal OSHA coverage under
section 3(5) of the OSH Act.
Under these regulations, the Assistant Secretary of Labor for
Occupational Safety and Health (``Assistant Secretary'') may approve a
State plan for public employees only, if the plan provides for the
development and enforcement of standards relating to hazards in
employment covered by the plan which are or will be at least as
effective in providing safe and healthful employment and places of
employment for public employees as standards promulgated and enforced
by Federal OSHA under section 6 of the OSH Act, giving due
consideration to differences between public and private sector
employment. In making this determination the Assistant Secretary will
consider, among other things, the criteria and indices of effectiveness
set forth in 29 CFR part 1956, subpart B. Following initial approval,
the State may begin enforcement of its safety and health standards in
the public sector and receive up to 50 percent Federal funding for the
cost of plan operations.
A State plan for public employees only may receive initial approval
even though at the time of submission not all essential components of
the plan are in place. Pursuant to 29 CFR 1956.2(b), the Assistant
Secretary may initially approve the submission as a ``developmental
plan,'' and a schedule within which the State must complete all
``developmental steps'' within a three year period is issued as part of
the initial approval decision. 29 CFR part 1953 provides procedures for
the review and approval of changes and progress in the development and
implementation of the State plan.
When the Assistant Secretary has reviewed and approved all
developmental submissions and finds that the State has satisfactorily
completed all developmental steps specified in the initial approval
decision, a notice certifying such completion is published in the
Federal Register (see 29 CFR 1956.23 and 1902.34). Certification
attests to the structural completeness of the plan but does not render
judgment as to the adequacy or effectiveness of State performance.
II. State Plan History
The New York State plan for public employees only (``New York'' or
``the State'') is operated by the New York Department of Labor, Public
Employee Safety and Health (PESH) Program. This limited scope State
plan was initially approved as a developmental plan under section 18(b)
of the OSH Act, and 29 CFR part 1956, on June 1, 1984 (49 FR 22994).
After the initial approval of the State plan for public employees only
in 1984, New York successfully submitted all of its developmental plan
change supplements within three years of the initial approval decision.
Previously, in May 1973, the New York Department of Labor had
received approval from the Assistant Secretary, under 29 CFR part 1902,
for a comprehensive State plan for the enforcement of occupational
safety and health standards in both the private and public sectors (38
FR 13482-13485). That plan was voluntarily withdrawn when the necessary
State enabling legislation failed to be enacted (40 FR 27655).
In November 2004, PESH submitted a completely revised State plan
which provided updated documentation on all its developmental steps,
including those previously approved, for OSHA review and consideration.
After extensive review of those documents and opportunity for State
correction, New York submitted further revisions in August 2005,
October 2005, and April 2006.
III. Description of the Revised State Plan
New York submitted plan supplements constituting a revised State
plan document on November 4, 2004, with subsequent revisions dated
August 19, 2005, October 17, 2005, and April 28, 2006. The revised
State plan updates and documents all structural components of the New
York program. This includes a revised narrative description of the
current program, legislation, administrative rules, standards, a
compliance manual, and current copies of all key documents relating to
New York's occupational safety and health program for public employees.
These documents are described below and are being approved in this notice.
A. The Plan Narrative and Appendices
The plan designates the Commissioner of the New York Department of
Labor, through the Division of Safety and Health, Public Employee
Safety and Health (PESH) program, as the State agency responsible for
administering the plan throughout the State. The plan narrative
provides a general overview of PESH's legal authority, standards and
variances, regulations, enforcement policies and procedures (the
``Field Operations Manual''), voluntary compliance activities
(including consultative services and training and outreach programs),
an occupational safety and health laboratory, personnel policies and
procedures, recordkeeping and reporting requirements, budget, staffing
and funding, all of which, together with the supporting documents
contained in various appendices, have been determined to provide
authority which is ``at least as effective as'' that of the OSH Act and
to meet the criteria and indices for plan approval contained in 29 CFR
part 1956.
The State plan appendices contain a variety of State statutes
related to the PESH program and its authority, contest procedures, and
personnel policies, including: New York Public Employee Safety and
Health Act at Article 2, Section 27-a of the New York State Labor Law
(``Labor Law''); Article 1, Sections 100-104, and Article 2, Sections
201-207, State Administrative Procedure Act; Article 78, Civil Practice
Law; Article 2, Section 31, Labor Law, Duty to Furnish Information and
Facilitate Inspections; Article 7, Section 200, Labor Law, General Duty
to Protect the Health and Safety of Employees, Enforcement; Article 3,
Section 101, Labor Law, Review by Industrial Board of Appeals; Article
2, Section 38, Labor Law, Oaths and Affidavits; Article 2, Section 39,
Labor Law, Hearings and Subpoenas; Section 75, Civil Service Law,
Removal and other Disciplinary Actions; Article 175, Section 30, Penal
Law, Offering a False Instrument for Filing; Civil Service Law related
to Merit and Hiring System; Executive Law, Article 5, Section 63.3,
General Duties--Attorney General; and Article 28, Labor Law, Toxic
Substances Act.
The appendices also contain the following regulations: 12 NYCRR
Part 800, PESH Safety and Health Standards; 12 NYCRR Part 801,
Recordkeeping; 12 NYCRR Part 802, Inspections of Places of Public
Employment; 12 NYCRR Part 803, Variance Regulations; 12 NYCRR Part 804,
Petition for Modification of Abatement Date; 12 NYCRR Part 805,
Petition for Employee Contest of Abatement Period; 12 NYCRR Part 820,
Toxic Substances Information, Training and Education; and 12 NYCRR
Chapter 1, Subchapter B, Parts 65 and 66, Industrial Board of Appeals,
``Rules of Procedure and Practice.''
B. Legislation
The plan includes legislation, the New York Public Employee Safety
and Health Act (the ``PESH Act'') Article 2, Section 27-a of the New
York State Labor Law, as enacted in 1980 and amended on April 17, 1984;
August 2, 1985; May 25 and July 22, 1990; April 10, 1992; June 28,
1993; and April 1, 1997. Pursuant to this law, the State plan provides
coverage for all public employment in New York. The PESH Act defines
covered employers as ``the state, any political subdivision of the
state, a public authority or any other governmental agency or
instrumentality thereof;'' and covered employees as ``persons permitted
to work by an employer.'' No employees of any political subdivision of
the State or local government, including public school employees, are
excluded from the State plan. The PESH Act contains authority for
standards adoption, right of entry, inspections, citations, proposed
penalties for failure-to-abate violations, employee rights, variances,
non-discrimination, recordkeeping and voluntary compliance programs,
etc. The PESH Act contains three provisions which differ substantially
from the Federal OSH Act.
1. Penalties. Section 6 of the PESH Act establishes a penalty
structure which provides for failure-to-abate penalties of up to $200
per day for serious violations and $50 per day for other-than-serious
violations. This authority, together with mandatory follow-up
inspections and judicial enforcement, is the primary means of
compelling the abatement of hazards by public employers under the New
York program.
2. Hazard Abatement Board. Sections 15 and 16 of the PESH Act
establish a ``Hazard Abatement Board'' (the HAB) with three primary
functions: to recommend alternate occupational safety and health
standards to the Commissioner of Labor after holding public hearings;
to receive, review and act upon applications for funding of capital
projects designed to abate occupational safety and health hazards which
have been found by the Commissioner of Labor to violate the PESH Act,
or which have been identified in a report of the public employee
consultation program (only local government employers are eligible for
such funding); and to provide grants for programs designed to provide
occupational safety and health training and education for employees.
(The Hazard Abatement Board is independently funded by the State.)
3. Removal of Personal Property Prior to Inspections. Section 5(e)
of the PESH Act requires PESH to adopt regulations specific to the
conduct of inspections in locker rooms and other areas involving
employee personal property and privacy rights. Accordingly, PESH has
adopted a regulation on this topic, as described in paragraph F.,
Inspections and Enforcement, below.
C. Standards
The PESH Act, section 27-a(4)(a), mandates the adoption of all
Federal OSHA standards as State standards. The New York plan assures
the incorporation of any subsequent revisions or additions thereto in a
timely manner, including in response to Federal OSHA emergency
temporary standards. The procedure for adoption of Federal OSHA
standards is provided in the New York State Administrative Procedures
Act, which requires publication of the Commissioner of Labor's intent
to adopt a standard in the New York State Register at least 45 days
prior to such adoption. Subsequent to adoption and upon filing of the
standard with the Secretary of State, a notice of final action is
published in the State Register. The plan assures that permanent
standards adopted by OSHA will be adopted by the Commissioner within
180 days of Federal promulgation.
Under the plan, the Commissioner of Labor, in consultation with the
Hazard Abatement Board, or on his/her own initiative, can propose
alternative or different occupational safety and health standards if a
determination is made that an issue is not addressed by Federal OSHA
standards in a manner that is appropriate for the protection of public
employees. The New York Hazard Abatement Board (HAB) is authorized,
after public hearings, to recommend such standards to the Commissioner
under the PESH Act, sections 27-a.16(D)(a)-(c). The State plan provides
for the development and consideration of expert technical information
in the formulation of standards and allows interested persons to submit
information requesting development or promulgation of any standard and
to participate in any hearing for the development, modification or
establishment of standards. In addition, the State Administrative Procedures
Act requires public notice and comment for all proposed rules, and provides
opportunity for public participation in related hearings.
The plan includes 12 NYCRR Part 800.3, the State safety and health
standards regulation, which codifies PESH's adoption by reference of
all Federal OSHA safety and health standards applicable to public
employees. New York standards are identical to the Federal standards
with the following exceptions and additions. The State promulgated and
retained the 1989 Permissible Exposure Limits in the Air Contaminants
Standard, which were initially promulgated at 29 CFR 1910.1000 by
Federal OSHA but subsequently withdrawn. In addition, the requirements
of the PESH Hazard Communication (``HazCom'') Standard, which are
identical to the Federal Hazard Communication Standard (29 CFR
1910.1200), are supplemented with additional requirements, as
applicable to public sector employers only, in the New York Toxic
Substances Act (NYTSA) and its implementing regulations at 12 NYCRR
Part 820. The NYTSA defines ``toxic substances'' more broadly than the
HazCom standard and does not contain the same exemptions, such as those
for articles or consumer products, as the HazCom standard. PESH
monitors for compliance with the NYTSA in three areas: The posting of a
sign; the provision of annual employee training at no-cost, during work
hours, and in a convenient location; and the maintenance of employee
training records. NYTSA violations are noted by PESH compliance
officers during inspections and referred to the Attorney General for
enforcement if not resolved. On June 7, 2006, New York enacted a new
workplace violence prevention law applicable to public employees, which
amends the State Labor Law and requires the Commissioner to issue
implementing regulations. The law requires public employers to assess
workplace violence risks and, in workplaces with 20 or more employees,
develop and implement a written workplace violence prevention program.
These different or additional State requirements have been reviewed and
determined to be ``at least as effective'' as the comparable Federal
standards.
D. Variances
Section 8 of the PESH Act and 12 NYCRR Part 803 establish
proceedings for the granting of permanent and temporary variances from
State standards, which are equivalent to the Federal requirements at 29
CFR part 1905. These provisions require employee notification of
variance applications and provide for employee participation in
hearings held on variance applications. Variances may not be granted
unless it is established that adequate protection is afforded employees
under the terms of the variance. Under the plan, all variances granted
have only future effect and temporary variances are available only
prior to the effective date of a standard. The procedures allow for the
modification or revocation of permanent variances at any time after six
months from issuance upon application by an employer, employee,
employee representative, or by the Commissioner on his/her own motion.
Temporary variances may not be renewed more than twice. Procedures for
variance actions can be found in the PESH Field Operations Manual,
Chapter VI.
E. Employee Notice and Discrimination Protection
The plan provides for notification to employees of their
protections and obligations under the plan by such means as the State
``Public Employees Job Safety and Health Protection'' poster (which is
included in the plan documents and also available electronically on the
PESH Web site) and required posting of notices of violations. Section
10 of the PESH Act provides for protection of employees against
discharge or discrimination resulting from exercise of their rights
under the State's Act in terms parallel to section 11(c) of the Federal
Act. Complaints must be filed within thirty days after the alleged
violation, and the complainant must be notified of the Commissioner of
Labor's determination within ninety days of the receipt of the
complaint. If the Commissioner determines that the provisions of
Section 10 have been violated, the Commissioner is required to make a
request to the New York Attorney General to bring an action in the New
York Supreme Court. The New York Supreme Court has jurisdiction to
restrain violations and to order all appropriate relief, including
rehiring or reinstatement of the employee to his or her former position
with back pay.
F. Inspections and Enforcement
Inspection and enforcement policies and procedures provided in the
plan are established by the PESH Act, 12 NYCRR Part 802, ``Inspections
of Places of Public Employment,'' and the PESH Field Operations Manual.
Complaints must be filed in writing and signed. The plan provides for
the inspection of covered workplaces, including inspections in response
to employee complaints, right of entry for inspections, a prohibition
of advance notice of inspections, a mechanism for employees of the
employer and their representatives to accompany the inspector during
the physical inspections, and opening, informal, and closing
conferences. A copy of the ``PESH Closing Conference'' guide, which
fully describes the employer's rights and responsibilities at the time
of the closing conference, is also included in the plan.
Significant differences between Federal OSHA and PESH inspection
and enforcement procedures include the following.
1. Penalties. The PESH Act, section 6(a), provides for the
assessment of civil monetary penalties for public sector employers for
failure-to-abate violations only. If the Commissioner determines that
an employer has violated the PESH Act, a ``Notice of Violation and
Order to Comply'' (also called a citation) is issued which establishes
a reasonable time for compliance and the penalty to be assessed for
failure to correct the violation by the time fixed for compliance. An
employer who fails to correct a violation by the time fixed for
compliance may be assessed a penalty of up to fifty dollars per day for
a non-serious violation, and up to two hundred dollars per day for a
serious violation, until the violation is corrected.
2. No Informal Complaint Procedures. The PESH Act, section 5(a),
provides for the investigation of formal employee complaints which must
be in writing and signed. If a determination is made that an employee
complaint does not warrant an inspection, the complainant must be
notified, in writing, of such determination and afforded an opportunity
to seek informal review of the determination. New York requires all
employee complaints to be formalized and does not have a program for
responding to informal complaints.
3. Citation Clearinghouse. In addition to sending citations to
employers, copies of all citations are mailed to a ``clearinghouse''
which provides a copy of the citation to the headquarters of any union
authorized to represent employees at the affected public sector
workplace.
4. Follow-Up Inspections. The plan provides 100% follow-up on all
initial inspections with violations. Follow-up inspections are normally
conducted 30 to 60 days after the latest abatement date. If a cited
violation is found not to have been abated at the time of a follow-up
inspection, daily failure-to-abate penalties are proposed and a failure-to-abate
notice is issued with a final inspection date (or a second follow-up inspection).
If a cited violation is found not to have been abated at the time of the second
follow-up inspection, the case will be referred to New York Department
of Labor Counsel. If Department of Labor Counsel is not able to
negotiate a compliance agreement, the case would be referred for
enforcement to the Attorney General who would seek a judicial mandamus
action to compel abatement. (See paragraph I., Judicial Review, below).
Once an employer corrects a failure-to-abate violation a final penalty
bill is sent. New York penalty data is reflected in OSHA's Integrated
Management Information System at the final penalty stage. The State
maintains an internal data system, to which OSHA has full access, to
calculate daily penalties on an ongoing basis.
5. Definition of ``Catastrophe.'' PESH defines a ``catastrophe'' as
the hospitalization of two or more employees (rather than three, as
Federal OSHA does).
6. Alternative Compliance Agreements. New York procedures provide
public employers with the opportunity to request alternative means of
compliance starting at the time of the inspection closing conference.
This procedure is similar to OSHA's informal settlement agreement
process. Alternative Compliance Agreement (ACA) requests are made
through an application process with the Division of Safety and Health's
Engineering Services Unit (ESU). If the request for an ACA agreement is
filed prior to the abatement date, uncorrected violations are not
assessed a penalty until the Department issues a decision on the
alternative compliance request, and follow-up inspections are held in
abeyance until the alternative compliance agreement is approved or
denied. If such a request is granted, no penalty is imposed unless a
reinspection reveals that the employer is not in compliance with the
terms of the ACA. Requests filed after the abatement date are normally
not accepted and must be accompanied by an explanation of extenuating
circumstances for the delay in filing.
7. Removal of Personal Property Prior to Inspection. In accordance
with section 5(e) of the PESH Act, State regulations at 12 NYCRR 802.7
permit employees to remove their personal property from the workplace
prior to safety and health inspections and prohibit compliance officers
from examining an employee's personal property without his or her
permission. The State plan narrative includes an assurance that this
provision does not provide advance notice and has not affected PESH's
ability to conduct full and complete inspections, but that if it ever
were to become an issue, PESH will seek to amend or remove the
statutory and regulatory provisions.
8. Contest Period. The period fixed in the plan for contesting
notices of violation is 60 calendar days. (See paragraph H, ``Review
Procedures,'' below.)
9. Universal Orders. A universal order is defined in the PESH FOM,
Chapter IV, D, as a citation issued to an employer citing a violation
that exists in more than one work location under the control of that
employer. Due to the structure and organization of the public sector,
it is appropriate, and an effective means of gaining compliance, under
certain circumstances to issue notices of violations requiring the
correction of hazardous conditions at all locations under the control
of that employer.
G. Compliance Manual
The PESH Field Operations Manual (the PESH FOM) was last revised in
April 2006, and is available to the public on the New York Department
of Labor's Web site. The New York compliance manual parallels Federal
OSHA's revised Field Operations Manual, CPL 02-00-045 [CPL 2.45B], and
incorporates other policies parallel to Federal compliance directives
and unique State requirements. The PESH FOM provides guidance to PESH
compliance staff concerning general staff responsibilities, pre-
inspection procedures (including inspection scheduling and priorities,
complaints and other unprogrammed inspections, and inspection
preparation), inspection procedures (including conduct of the
inspection, opening conference, closing conference, physical
examination of the workplace, follow-up inspections, fatality/
catastrophe investigations, imminent danger investigations, and
construction inspections), inspection documentation (including types of
violations, violations of the general duty clause, writing citations,
and grouping/combining violations), post-inspection procedures
(including abatement, citations, penalties, and post-citation
processes), discrimination investigation procedures, disclosure of
information under the New York State Freedom of Information Law
(including policy and procedures and specific guidelines), and outreach
and training programs. Although not a statutory requirement, the PESH
FOM establishes New York's policy that notices of violation will
normally be issued to the employer within six months following the
occurrence of the violation. New York also uses and has adopted the
OSHA Technical Manual (TED 01-00-015 [TED 1-0.15A]), which replaced the
former Industrial Hygiene Manual, as guidance for its staff.
H. Review Procedures
Under the plan, both public employers and employees may seek formal
administrative review of New York Department of Labor citations and
penalties, as well as the reasonableness of the abatement period,
before the Industrial Board of Appeals (IBA). Prior to contest,
employers and employees and their authorized representatives may seek
informal review of citations, penalties and abatement dates issued by
the Department of Labor, by requesting an informal conference in
writing within 20 working days from the receipt of the Notice of
Violation and Order to Comply. If the informal conference does not
produce agreement, the affected party may then seek formal
administrative review with the IBA within the 60 day contest period.
The IBA is the independent, quasi-judicial, State agency authorized
by section 27-a.6(c) of the PESH Act to consider petitions from
affected parties for review of the Commissioner of Labor's
determinations pursuant to the PESH Act. Pursuant to section 27-a.6(c)
of the PESH Act, Section 101 of the Labor Law, and the IBA's ``Rules of
Procedure and Practice,'' 12 NYCRR Chapter 1, Subchapter B, Parts 65
and 66, any employer, employee or other person affected by a Notice of
Violation and Order to Comply issued by the Commissioner of Labor may
petition the IBA for review no later than 60 calendar days after
issuance. A contest does not automatically stay a citation, penalty or
abatement date; a stay must be requested and granted by the IBA. If the
contest stems from a follow-up inspection and issuance of a failure-to-
abate violation, the penalty continues to accumulate on a daily basis,
but is deferred until the IBA decision, which would also address the
final penalty amount. Subsequent to the Board's proceeding, any
affected party may, within 60 days after the IBA's decision is issued,
request judicial review of the Board's decision pursuant to section
6(c) of the PESH Act and Article 78 of the New York Civil Practice Law.
Pursuant to 12 NYCRR Part 805, public employees or their authorized
representatives have the additional right to contest the abatement
period prescribed in the Notice of Violation and Order to Comply by
filing a petition with the Commissioner within 15 working days of the
posting of the employer's citation, or later if good cause for late filing
is shown. The Commissioner may grant, modify or deny the petition. If the
Commissioner denies the petition, in whole or in part, the petition is
automatically forwarded to the IBA for review. If the Commissioner modifies
the abatement period, the employer may petition for review by the IBA under
Section 101 of the Labor Law. Employees or employee representatives who
wish to participate in employer-initiated proceedings before the IBA must
request intervenor party-status, and the plan includes an assurance that
should an employee or employee representative request such status, the State
will appropriately inform the IBA of its support for the request. Should the
IBA deny an employee's or employee representative's request for
intervenor status, New York has pledged to seek immediate corrective
action to guarantee employees' rights to party status in employer-
initiated cases.
I. Judicial Review
Under section 6(d) of the PESH Act, if the time for compliance with
an order of the Commissioner has elapsed without compliance, the
Commissioner of Labor may seek judicial enforcement by commencing a
proceeding pursuant to Article 78 of the New York Civil Practice Law.
The Commissioner would seek such judicial enforcement, via the New York
Attorney General, if there was a continuing failure-to-abate violation
at the time of the second follow-up inspection and New York Department
of Labor Counsel has been unable to obtain compliance. If the only
noncompliance is the failure to pay a penalty, the Commissioner may
file a duly enforceable collection action with the appropriate County
Clerk.
Further, in light of the fact that the length of the contest period
(60 calendar days) is significantly longer than the 15 working day
period allowed under the Federal program, the plan includes a March 3,
1984, Counsel's opinion and assurance that New York has the authority
under Article 78 of the New York Civil Practice Law to obtain judicial
enforcement of an uncontested order to comply upon expiration of the
abatement period, regardless of whether the 60 day contest period has
expired. New York has also assured that should the State Labor
Department's interpretation be successfully challenged, appropriate
legislative correction would be sought.
The State plan's authority for response to imminent danger includes
``red tag'' authority which is contained in Article 7, Section 200.2 of
the New York State Labor Law. The Commissioner has the authority to
prohibit the use of any machinery, equipment or device in a dangerous
condition, and to prohibit work in, or occupancy of, areas found in a
dangerous condition, until the condition is corrected and the notice is
removed by the Commissioner. These orders are subject to review by the
IBA. Section 200.3 authorizes the New York Attorney General to
institute a proceeding to enjoin the use of dangerous machinery,
equipment, devices, or areas that have been ``tagged'' under Section
200.2. The filing of a petition for review with the IBA does not stay
the Attorney General's proceedings.
J. Budget and Personnel
The plan includes the FY 2006 grant application under section 23(g)
of the OSH Act, which includes a current organizational chart and
detailed information on staffing and funding. The State has given
satisfactory assurances of adequate funding to support the plan. In FY
2006, the State plan was funded at $3,100,000 in Federal section 23(g)
funds, $3,100,000 in matching State funds, and $992,000 in 100% State
funds, for a total Federal and State contribution of $7,192,000. The
program's total staffing level is 101, including 29 safety and 21
health compliance officers, and 11 safety and 9 health public sector
consultants funded under the State plan grant. OSHA considers PESH's
current staffing and funding levels to be adequate and appropriate.
PESH personnel are employed under a merit system in compliance with New
York law and personnel rules. The plan includes the Civil Service Law
Related to Merit and Hiring System, and job descriptions and minimum
qualifications, by position.
K. Records and Reports
The plan provides that public employers in New York will maintain
appropriate records and make timely reports on occupational injuries
and illnesses in a manner substantially identical to and ``at least as
effective as'' that required for private sector employers under Federal
OSHA. New York participates and has assured that it will continue its
participation in the Bureau of Labor Statistics Annual Survey of
Injuries and Illnesses in the public sector. The plan also contains
assurances that the Commissioner of Labor will provide reports to OSHA
in such form as the Assistant Secretary may require and that New York
will continue to participate in OSHA's Integrated Management
Information System.
In response to OSHA's 2001 revision of its recordkeeping rules (29
CFR part 1904; 66 FR 5916-6135), on December 21, 2001, New York revised
its recordkeeping regulation, 12 NYCRR Part 801, and issued
supplemental instructions, SH 901, which provide clarification and
interpretation of the basic rule requirements. In response to OSHA's
review, the State has modified its regulations and instructions, and
provided several clarifications and supplemental assurances in order to
make its requirements ``at least as effective as'' those of Federal
OSHA. The State assures that recordkeeping activity by employees
constitutes protected activity under the PESH Act's anti-discrimination
provisions (February 21, 2003, letter from New York Department of Labor
Counsel); that any administrative changes made to the SH 901
Instructions will be published in the New York State Register for
public comment and simultaneously shared with OSHA for review and
comment (May 27, 2003, letter from PESH); and that the employer is
required to provide a copy of the Annual Summary to any employee or
authorized employee representative requesting it in accordance with
801.35 and applicable OSHA interpretations (August 30, 2004, letter
from PESH). Revisions to the State's recordkeeping requirements were
adopted on May 17, 2006 and provide for the reporting of fatalities and
multiple hospitalization incidents after working hours and on weekends
to a designated after-hours PESH contact person and for the required
reporting of delayed multiple hospitalizations.
L. Voluntary Compliance Programs
The public employee consultation program makes available both
safety consultants and industrial hygienists to public employers who
request such service for the purpose of apprising them of existing
hazards and the best means of abatement. The PESH public sector
consultation manual parallels OSHA's Consultation Policies and
Procedures Manual, TED 3.5B. The consultation program also provides
outreach and training in support of PESH's activities. Under the plan,
training is provided to public employers and employees, and seminars
are conducted to familiarize affected individuals with applicable
safety and health standards and requirements and safe work practices.
PESH has a variety of public information programs to disseminate
information and publications on important safety and health concerns.
Policies and procedures for Area Office outreach programs, including training,
educational and informational services, as well as voluntary compliance
programs, are described in the PESH Field Operations Manual.
Through contractual agreements, the Governor's Office of Employee
Relations requires joint management and labor health and safety
committees in all State agencies. This requirement is independent of
the State plan.
IV. Completion of Developmental Steps
With the approval of the revised State plan in today's action, all
developmental steps specified in the June 1, 1984, notice of initial
approval of the New York public employee only State plan, and other
relevant steps, have been successfully completed and approved as
follows:
A. In accordance with 29 CFR 1956.51(a), the State of New York
promulgated standards identical to all Federal OSHA standards as of
July 1, 1983. A supplement to the State plan documenting this
accomplishment was initially approved by the Assistant Secretary on
August 26, 1986 (51 FR 30449). Subsequently all OSHA standards
promulgated through April 28, 2006, have been adopted as New York State
standards applicable to public employees. These identical standards;
the State's different Air Contaminants Standard (1910.1000); the
additional hazard communication requirements in the New York Toxic
Substances Act, as applicable to public sector employers only; and the
State's independent Workplace Violence Prevention law are approved by
the Assistant Secretary in today's notice.
B. In accordance with 29 CFR 1956.51(b), New York has promulgated
regulations for inspections, citations and abatement equivalent to 29
CFR part 1903 at 12 NYCRR Part 802, as supplemented by the State Field
Operations Manual, both of which are approved by the Assistant
Secretary in today's notice.
C. In accordance with 29 CFR 1956.51(c), the New York safety and
health poster for public employees only, which was originally approved
by the Assistant Secretary on May 16, 1985 (50 FR 21046), is approved,
as revised, in today's notice.
D. In accordance with 29 CFR 1956.51(d), the State extended its
participation in the Bureau of Labor Statistics (BLS) Survey of
Injuries and Illnesses to the public sector. This supplement was
approved by the Assistant Secretary on December 29, 1989 (55 FR 1204),
and the State's continued participation is documented in the April 28,
2006, revised State plan, which is approved in today's notice.
E. In accordance with 29 CFR 1956.51(e), the State promulgated
regulations for granting variances equivalent to 29 CFR part 1905, at
12 NYCRR Part 803, which were approved by the Assistant Secretary on
December 29, 1989 (55 FR 1204). These regulations are contained in the
April 28, 2006, revised State plan and are supplemented by the State's
Field Operations Manual. These regulations and implementing procedures
for variances are approved in today's notice.
F. In accordance with 29 CFR 1956.51(f), the State initially
promulgated regulations for injury/illness recordkeeping equivalent to
29 CFR part 1904, which were approved by the Assistant Secretary on
December 29, 1989 (55 FR 1204). In response to revisions to the Federal
recordkeeping rule, the State's revised recordkeeping regulations at 12
NYCRR Part 801; supplemental instructions at SH 901; and supplemental
assurances concerning amendments to the SH 901 Instructions, after-
hours reporting of fatalities and catastrophes, required reporting of
delayed hospitalizations, protected activity, and employee rights to
receive a copy of the Annual Summary of workplace injuries and
illnesses, are approved in today's notice.
G. In accordance with 29 CFR 1956.51(g), the State developed and
adopted employee non-discrimination procedures equivalent to 29 CFR
Part 1977, which were approved by the Assistant Secretary on December
29, 1989 (55 FR 1204). Updated procedures, as contained in the April
28, 2006, revised plan, are approved in today's notice.
H. In accordance with 29 CFR 1956.51(h), the State adopted
procedures for the review of contested cases equivalent to 29 CFR Part
2200, which were approved by the Assistant Secretary on December 29,
1989 (55 FR 1204). The State's updated contested case procedures as
found at Article 3, Section 101 of the Labor Law, and the ``Rules of
Procedure and Practice'' of the Industrial Board of Appeals, 12 NYCRR
Chapter 1, Subchapter B, Parts 65 and 66, are approved in today's
notice.
I. In accordance with 29 CFR 1956.51(i), the State revised its plan
to reflect procedures for the development and adoption of alternative
standards. At the time of initial approval, the State Plan provided for
the adoption of identical OSHA safety and health standards, which
procedures were approved by the Assistant Secretary on December 29,
1989 (55 FR 1204). The State's current procedures for adoption of
alternative standards provide that the Commissioner of Labor, in
consultation with the Hazard Abatement Board, or on his/her own
initiative, under the State Administrative Procedures Act, can propose
alternative or different occupational safety and health standards if a
determination is made that an issue is not properly addressed by
Federal OSHA standards and is necessary for the protection of public
employees. The procedures for adoption of alternative standards provide
for consideration of expert technical information and allow interested
persons to request the development of a standard and to participate in
any hearings for the development or modification of standards. These
procedures are approved in today's notice.
J. In accordance with 29 CFR 1956.51(j), the State has developed a
Field Operations Manual which parallels the OSHA revised Field
Operations Manual, CPL 02-00-045 [CPL 2.45B], and incorporates other
Federal compliance policy directives and unique State requirements. The
State's Field Operations Manual is approved in today's notice.
K. In accordance with 29 CFR 1956.51(k), the State adopted the
Federal Industrial Hygiene Manual, including changes one (1) and two
(2), through April 7, 1987, a developmental step that was approved by
the Assistant Secretary on December 29, 1989 (55 FR 1204). The State
subsequently replaced this manual with the OSHA Technical Manual. This
action is approved in today's notice.
L. In accordance with 29 CFR 1956.51(l), the State issued a
directive implementing an on-site consultation program in the public
sector which was approved by the Assistant Secretary on December 29,
1989 (55 FR 1204). The State's current Consultation Policy and
Procedures Manual and its description of New York's public sector on-
site consultation program and other compliance assistance efforts as
contained in the April 28, 2006, revised State plan are approved in
today's notice.
M. In accordance with 29 CFR 1956.51(m), the State has developed
and implemented a public employer and employee training and education
program with procedures described in the Field Operations Manual which
are approved in today's notice.
V. Decision
A. Approval of Plan Supplements
After careful review, opportunity for State correction, and
subsequent revision, the plan supplements constituting a New York
revised State plan for public employees only and its components
described above are found to be in substantial conformance with
comparable Federal provisions and the requirements of 29 CFR part 1956
and are hereby approved under 29 CFR part 1953 as providing a revised
State plan for the development and enforcement of standards which is
``at least as effective as'' the Federal program, as required by
section 18 of the OSH Act and 29 CFR part 1956. Subpart F of 29 CFR
part 1956 is amended to reflect the approval of the revised plan
supplements and the satisfactory completion of all developmental steps.
The right to reconsider this approval of the revised State plan
supplements is reserved should substantial objections or other
information become available to the Assistant Secretary regarding any
components of the plan changes.
B. Certification
With the approval of a revised State plan as noted above, all
developmental steps have now been successfully completed, documented
and approved. In accordance with 29 CFR 1956.23, the New York public
employee only State plan is certified as having successfully completed
all developmental steps. Subpart F of 29 CFR part 1956 is amended to
reflect this certification. This certification attests to the
structural completeness of the State plan and that it has all the
necessary authorities and procedures to provide ``at least as
effective'' standards, enforcement, and compliance assistance to the
employees of New York State and its political subdivisions. This action
renders no judgment as to the effectiveness of the State plan in actual
operations.
VI. Location of Basic State Plan Documentation
Copies of the revised New York State plan for public employees are
maintained at the following locations; specific documents are available
on the State's website or upon request. Contact the Directorate of
Cooperative and State Programs, Office of State Programs, U.S.
Department of Labor, Occupational Safety and Health Administration, 200
Constitution Avenue, NW., Room N-3700, Washington, DC 20210; the Office
of the Regional Administrator, U.S. Department of Labor, Occupational
Safety and Health Administration, 201 Varick Street, Room 670, New
York, New York 10014; or the New York Public Employee Safety and Health
Program, State Office Campus Building 12, Room 158, Albany, New York
12240.
Components of the New York State plan, including the Field
Operation Manual, recordkeeping regulations and instructions, complaint
forms, and other program information are posted on the New York
Department of Labor, Public Employee Safety and Health Web site at:
http://www.labor.state.ny.us/workerprotection/safetyhealth/DOSH_PESH.shtm.
The PESH Act and other New York statutes can be found on the New
York State Legislature's Web site at: http://public.leginfo.state.ny.us.
The New York Industrial Board of Appeals, Rules of Procedure and Practice,
can be found on the New York Department of Labor Web site at:
http://www.labor.state.ny.us/iba/toc.htm.
The State Administrative Procedures Act can be found on the
Governor's Web site at: http://www.gorr.state.ny.us/SAPA-Text.htm.
Electronic copies of this Federal Register notice and the related
press release are available on OSHA's Web site, http://www.osha.gov.
VII. Public Participation
Under 29 CFR 1953.6(c), OSHA generally ``will seek public comment
if a State program component differs significantly from the comparable
Federal program component and OSHA needs additional information in
order to determine its compliance with the criteria in section 18(c) of
the Act, including whether it is at least as effective as the Federal
program. * * *'' Based on OSHA's review of the State laws, regulations
and procedures that comprise the revised State plan and written
assurances provided by the State, the Assistant Secretary finds that
the New York revised State plan for public employees described above is
at least as effective as Federal requirements and is consistent with
commitments contained in the plan. Public participation for the purpose
of providing additional information about the effectiveness of the
structural components of the New York public employee only State plan
is therefore unnecessary. Moreover, all legislative and regulatory
components of the revised plan were adopted under procedural
requirements of State law, which included appropriate opportunity for
public participation. Good cause is therefore found for approval of
these supplements (which constitute the revised State plan); further
public participation would be repetitious and unnecessary.
This document was prepared under the direction of Edwin G. Foulke,
Jr., Assistant Secretary of Labor for Occupational Safety and Health.
It is issued under section 18 of the Occupational Safety and Health Act
of 1970, 84 Stat. 1608 (29 U.S.C. 667); 29 CFR part 1956; Secretary of
Labor's Order No. 5-2002 (67 FR 65008, October 22, 2002).
List of Subjects in 29 CFR Part 1956
Intergovernmental relations, Law enforcement, Occupational safety
and health, Occupational Safety and Health Administration.
Signed in Washington, DC, this 9th day of August, 2006.
Edwin G. Foulke, Jr.,
Assistant Secretary of Labor.
0
Part 1956 of 29 CFR is hereby amended as follows:
PART 1956--[AMENDED]
0
1. Revise the authority citation of part 1956 to read as follows:
Authority: Section 18 of the OSH Act (29 U.S.C. 667), 29 CFR
part 1956, and Secretary of Labor's Order No. 5-2002 (67 FR 65008).
0
2. Revise Sec. 1956.50 to read as follows:
Sec. 1956.50 Description of the plan as certified.
(a) Authority and scope. The New York State Plan for Public
Employee Occupational Safety and Health received initial OSHA approval
on June 1, 1984, and was certified as having successfully completed its
developmental steps on August 16, 2006. The plan designates the New
York Department of Labor as the State agency responsible for
administering the plan throughout the State. The plan includes
legislation, the New York Act (Public Employee Safety and Health Act,
Chapter 729 of the Laws of 1980/Article 2, Section 27-a of the New York
State Labor Law), enacted in 1980, and amended on April 17, 1984;
August 2, 1985; May 25 and July 22, 1990; April 10, 1992; June 28,
1993; and April 1, 1997. Under this legislation, the Commissioner of
Labor has full authority to enforce and administer all laws and rules
protecting the safety and health of all employees of the State and its
political subdivisions. In response to OSHA's concern that language in
section 27-a.2 of the New York Act, regarding the Commissioner of
Education's authority with respect to school buildings, raised
questions about the coverage under the plan of public school employees,
in 1984 New York submitted amendments to its plan consisting of
Counsel's opinion and an assurance that public school employees are fully
covered under the terms of the PESH Act.
(b) Standards. The New York plan, as of revisions dated April 28,
2006, provides for the adoption of all Federal OSHA standards
promulgated as of that date, and for the incorporation of any
subsequent revisions or additions thereto in a timely manner, including
in response to Federal OSHA emergency temporary standards. The
procedure for adoption of Federal OSHA standards calls for publication
of the Commissioner of Labor's intent to adopt a standard in the New
York State Register 45 days prior to such adoption. Subsequent to
adoption and upon filing of the standard with the Secretary of State, a
notice of final action will be published as soon as is practicable in
the State Register. The plan also provides for the adoption of
alternative or different occupational safety and health standards if a
determination is made by the State that an issue is not properly
addressed by OSHA standards and is relevant to the safety and health of
public employees. In such cases, the Commissioner of Labor will develop
an alternative standard to protect the safety and health of public
employees in consultation with the Hazard Abatement Board, or on his/
her own initiative. The procedures for adoption of alternative
standards contain criteria for consideration of expert technical advice
and allow interested persons to request development of any standard and
to participate in any hearing for the development or modification of
standards.
(c) Variances. The plan includes provisions for the granting of
permanent and temporary variances from State standards in terms
substantially similar to the variance provisions contained in the
Federal program. The State provisions require employee notification of
variance applications and provide for employee participation in
hearings held on variance applications. Variances may not be granted
unless it is established that adequate protection is afforded employees
under the terms of the variance, and variances may have only future
effect.
(d) Employee notice and discrimination protection. The plan
provides for notification to employees of their protections and
obligations under the plan by such means as a State poster and required
posting of notices of violations. The plan also provides for protection
of employees against discharge or discrimination resulting from
exercise of their rights under the State's Act in terms essentially
identical to section 11(c) of the OSH Act.
(e) Inspections and enforcement. The plan provides for inspection
of covered workplaces, including inspections in response to employee
complaints. If a determination is made that an employee complaint does
not warrant an inspection, the complainant shall be notified, in
writing, of such determination and afforded an opportunity to seek
informal review of the determination. The plan provides the opportunity
for employer and employee representatives to accompany the inspector
during an inspection for the purpose of aiding in the inspection. The
plan also provides for right of entry for inspection and a prohibition
of advance notice of inspection. In lieu of first-instance monetary
sanctions for violations, the plan establishes a system for compelling
compliance under which public employers are issued notices of violation
and orders to comply. Such notices fix a reasonable period of time for
compliance. If compliance is not achieved by the time of a follow-up
inspection, daily failure-to-abate penalties of up to $50 for non-
serious violations and up to $200 for serious violations, will be
proposed. The Commissioner of Labor may seek judicial enforcement of
orders to comply by commencing a proceeding pursuant to Article 78 of
the New York Civil Practice Law. In addition, the plan provides for
expedited judicial enforcement when non-compliance is limited to non-
payment of penalties.
(f) Review procedures. Under the plan, public employers and
employees may seek formal administrative review of New York Department
of Labor citations, including penalties and the reasonableness of the
abatement periods, by petitioning the New York Industrial Board of
Appeals (IBA) no later than 60 days after the issuance of the citation.
The IBA is the independent State agency authorized by section 27-
a(6)(c) of the New York Act to consider petitions from affected parties
for review of the Commissioner of Labor's determinations. A contest
does not automatically stay a notice of violation, penalty or abatement
date; a stay must be granted from the IBA. Judicial review of any
decision of the IBA may be sought pursuant to Article 78 of the New
York Civil Practice Law. Prior to contest, employers, employees and
other affected parties may seek informal review of citations, penalties
and abatement dates by the Department of Labor by requesting an
informal conference in writing within 20 working days from the receipt
of citation. If the informal conference does not produce agreement, the
affected party may seek formal administrative review with the IBA.
Public employees or their authorized representatives have the
additional right under 12 NYCRR Part 805 to contest the abatement
period by filing a petition with the Commissioner within 15 working
days of the posting of the citation by filing a petition with the
Department of Labor, or later if good cause for late filing is shown.
If the Commissioner denies the employee contest of abatement period
under Part 805 in whole or in part, the complaint will automatically be
forwarded to the IBA for review. Under the IBA rules, public employees
or their representatives may request permission to participate in an
employer-initiated review process as ``intervenors.'' The plan includes
an April 28, 2006, assurance that should an employee or employee
representative request intervenor status in an employer-initiated case,
the State will appropriately inform the IBA of its support for the
request. Should an employee's or employee representative's request for
participation be denied, the State will seek immediate corrective
action to guarantee the right to employee party status in employer-
initiated cases. The period fixed in the plan for contesting notices of
violation is 60 calendar days, which is significantly longer than the
15 working day period allowed under the Federal OSHA program. However,
New York has provided assurance, by Counsel's opinion of March 3, 1984,
that it has the authority under Article 78 of the New York Civil
Practice Law to obtain judicial enforcement of an uncontested order to
comply upon expiration of the abatement period, regardless of whether
the 60 day contest period has expired. New York has also assured that
should the State Labor Department's interpretation be successfully
challenged, appropriate legislative correction would be sought.
(g) Staffing and resources. The plan as revised April 28, 2006,
provides assurances of a fully trained, adequate staff, including 29
safety and 21 health compliance officers for enforcement inspections
and 11 safety and 9 health consultants to perform consultation services
in the public sector. The State has also given satisfactory assurances
of continued adequate funding to support the plan.
(h) Records and reports. The plan provides that public employers in
New York will maintain appropriate records and make timely reports on
occupational injuries and illnesses in a manner substantially identical
to that required for private sector employers under Federal OSHA. New
York has assured that it will continue its participation in the Bureau of
Labor Statistics Annual Survey of Injuries and Illnesses in the public
sector. The plan also contains assurances that the Commissioner of
Labor will provide reports to OSHA in such form as the Assistant
Secretary may require, and that New York will participate in OSHA's
Integrated Management Information System.
(i) Voluntary compliance programs. The plan provides for training
for public employers and employees; seminars to familiarize affected
public employers and employees with applicable standards, requirements
and safe work practices; and an on-site consultation program in the
public sector to provide services to public employers upon request.
0
3. Revise Sec. 1956.52 to read as follows:
Sec. 1956.52 Completed developmental steps and certification.
(a) In accordance with 29 CFR 1956.51(a), the State of New York
promulgated standards identical to all Federal OSHA standards as of
July 1, 1983. A supplement to the State plan documenting this
accomplishment was initially approved by the Assistant Secretary on
August 26, 1986 (51 FR 30449). Subsequently, all OSHA standards
promulgated through April 28, 2006, have been adopted as New York State
standards applicable to public employees. These identical standards;
the State's different Air Contaminants Standard (1910.1000); the
additional hazard communication requirements, as applicable to public
sector employers only, in the New York Toxic Substances Act; and the
State's independent Workplace Violence Prevention law, were approved by
the Assistant Secretary on August 16, 2006.
(b) In accordance with 29 CFR 1956.51(b), New York has promulgated
regulations for inspections, citations and abatement equivalent to 29
CFR part 1903 at 12 NYCRR Part 802 and implementing procedures in the
State compliance manual, as contained in the State's April 28, 2006,
revised plan, which were approved by the Assistant Secretary on August
16, 2006.
(c) In accordance with 29 CFR 1956.51(c), the New York safety and
health poster for public employees only, which was originally approved
by the Assistant Secretary on May 16, 1985 (50 FR 21046), was approved,
as contained in the State's April 28, 2006, revised plan, by the
Assistant Secretary on August 16, 2006.
(d) In accordance with 29 CFR 1956.51(d), the State extended its
participation in the Bureau of Labor Statistics (BLS) Survey of
Injuries and Illnesses to the public sector. A supplement documenting
this action was approved by the Assistant Secretary on December 29,
1989 (55 FR 1204) and is contained in the State's April 28, 2006,
revised plan, which was approved by the Assistant Secretary on August
16, 2006.
(e) In accordance with 29 CFR 1956.51(e), the State promulgated
regulations for granting variances equivalent to 29 CFR part 1905 at 12
NYCRR Part 803, which were approved by the Assistant Secretary on
December 29, 1989 (55 FR 1204). These regulations, as revised and
supplemented by implementing procedures in the State's Field Operations
Manual, are contained in the April 28, 2006, revised State plan, and
were approved by the Assistant Secretary on August 16, 2006.
(f) In accordance with 29 CFR 1956.51(f), the State initially
promulgated regulations for injury/illness recordkeeping, equivalent to
29 CFR part 1904, which were approved by the Assistant Secretary on
December 29, 1989 (55 FR 1204). The State's revised recordkeeping
regulation, 12 NYCRR Part 801; corresponding instructions (SH 901); and
supplemental assurances concerning amendments to the SH 901
Instructions, after-hours reporting of fatalities and catastrophes,
required reporting of delayed hospitalizations, protected activity, and
employee rights to receive a copy of the Annual Summary of workplace
injuries and illnesses, are contained in the April 28, 2006, revised
plan, and were approved by the Assistant Secretary on August 16, 2006.
(g) In accordance with 29 CFR 1956.51(g), the State developed and
adopted employee non-discrimination procedures equivalent to 29 CFR
part 1977, which were approved by the Assistant Secretary on December
29, 1989 (55 FR 1204). Updated procedures, as contained in the April
28, 2006, revised plan, were approved by the Assistant Secretary on
August 16, 2006.
(h) In accordance with 29 CFR 1956.51(h), the State adopted
procedures for the review of contested cases equivalent to 29 CFR part
2200, which were approved by the Assistant Secretary on December 29,
1989 (55 FR 1204). The State's contested case procedures at Section 101
of the Labor Law; the ``Rules of Procedure and Practice'' of the
Industrial Board of Appeals, 12 NYCRR Chapter 1, Subchapter B, Parts 65
and 66; and 12 NYCRR 805, as contained in the April 28, 2006, revised
plan, were approved by the Assistant Secretary on August 16, 2006.
(i) In accordance with 29 CFR 1956.51(i), the State revised its
plan to reflect its procedures for the adoption of State standards
identical to OSHA safety and health standards, which were approved by
the Assistant Secretary on December 29, 1989 (55 FR 1204).
Subsequently, the State's procedures were revised to provide that the
Commissioner of Labor, in consultation with the Hazard Abatement Board,
or on his/her own initiative, can propose alternative or different
occupational safety and health standards if a determination is made
that an issue is not properly addressed by Federal OSHA standards and
is necessary for the protection of public employees. The procedures for
adoption of alternative standards contain criteria for development and
consideration of expert technical knowledge in the field to be
addressed by the standard and allow interested persons to submit
information requesting development or promulgation of any standard and
to participate in any hearing for the development, modification or
establishment of standards. These procedures are contained in the April
28, 2006, revised plan, and were approved by the Assistant Secretary on
August 16, 2006.
(j) In accordance with 29 CFR 1956.51(j), the State has developed a
Field Operations Manual which parallels Federal OSHA's Field Operations
Manual, CPL 02-00-045 [CPL 2.45B], incorporates other Federal
compliance policy directives, and contains procedures for unique State
requirements. This manual is contained in the April 28, 2006, revised
plan, and was approved by the Assistant Secretary on August 16, 2006.
(k) In accordance with 29 CFR 1956.51(k), the State adopted the
Federal Industrial Hygiene Manual, including changes one (1) and two
(2), through April 7, 1987, which was approved by the Assistant
Secretary on December 29, 1989 (55 FR 1204). The State's subsequent
adoption of the OSHA Technical Manual is documented in the April 28,
2006, revised State plan and was approved by the Assistant Secretary on
August 16, 2006.
(l) In accordance with 29 CFR 1956.51(l), the State issued a
directive implementing an on-site consultation program in the public
sector, which was approved by the Assistant Secretary on December 29,
1989 (55 FR 1204). The State's current Consultation Policy and
Procedures Manual and its description of New York's on-site
consultation program and other compliance assistance efforts, as contained
in the April 28, 2006, revised plan, were approved by the Assistant Secretary
on August 16, 2006. (m) In accordance with 29 CFR 1956.51(m), the State has
developed and implemented a public employer and employee training and education
program with procedures described in the Field Operations Manual,
which, as contained in the April 28, 2006, revised plan, was approved
by the Assistant Secretary on August 16, 2006.
(n) A revised State plan as submitted on April 28, 2006, was
approved and in accordance with 29 CFR 1956.23 of this chapter, the New
York occupational safety and health State plan for public employees
only was certified on August 16, 2006 as having successfully completed
all developmental steps specified in the plan as initially approved on
June 1, 1984. This certification attests to the structural completeness
of the plan, but does not render judgment as to adequacy of performance.
Sec. 1956.53 [Removed and reserved]
0
4. Remove the section heading and reserve Sec. 1956.53.
0
5. Revise Sec. 1956.54 to read as follows:
Sec. 1956.54 Location of basic State plan documentation.
Copies of basic State plan documentation are maintained at the
following locations. Specific documents are available upon request, and
will also be provided in electronic format, to the extent possible.
Contact the Directorate of Cooperative and State Programs, Office of
State Programs, U.S. Department of Labor, Occupational Safety and
Health Administration, 200 Constitution Avenue, NW., Room N-3700,
Washington, DC 20210; Office of the Regional Administrator, U.S.
Department of Labor, Occupational Safety and Health Administration, 201
Varick Street, Room 670, New York, New York 10014; and the New York
Department of Labor, Public Employee Safety and Health Program, State
Office Campus Building 12, Room 158, Albany, New York 12240. Current
contact information for these offices (including telephone numbers and
mailing addresses) is available on OSHA's Web site, http://www.osha.gov.
Sec. 1956.55 [Removed and reserved]
0
6. Remove and reserve Sec. 1956.55.
[FR Doc. E6-13504 Filed 8-15-06; 8:45 am]
BILLING CODE 4510-26-P